Employment Eye Alert - Ban on NHS 'gagging orders'

Much has been said about the need for openness, transparency and
candour in healthcare services, since the publication of the Robert
Francis report into the Mid Staffordshire Hospital last
month. One of the specific issues in this regard, raised by
the report, was that individuals were apparently prevented from
raising concerns about patient safety because of so-called ‘gagging
clauses’ in agreements with the hospital. Consequently, the report
recommended that any clauses in agreements with employees, or
ex-employees, which prevented individuals from raising concerns
about patient safety, to the extent that those concerns were in the
public interest, should be banned. The ‘gagging clauses’
referred to in the report related mainly to non-disparagement
clauses and, to a lesser extent, confidentiality clauses, in
contracts (including settlement agreements), policies and
procedures.

Jeremy Hunt has announced today that so-called ‘gagging clauses’
in NHS settlement agreements, which seek to prevent public interest
disclosures regarding patient safety and patient care, will be
‘banned’ with immediate effect.

Key points are as follows.

We do not yet have the detail of this announcement, but presume
that by ‘gagging clauses’, Mr Hunt is referring to
non-disparagement and confidentiality clauses which are included,
and have been included as standard practice, in settlement
agreements, whether in the NHS or otherwise.

Today’s announcement has been characterised in the press as a
‘new legal right’. However, it does not appear that Mr Hunt is
proposing any new legislation; rather that Department of Health /
Treasury approval (which is required before a NHS settlement
agreement may go ahead) will not be given unless there is a
specific clause in the agreement which confirms that the individual
signing up to the agreement is not prevented from making a
whistleblowing disclosure regarding patient safety or patient
care.

It does not appear that there will be blanket ban on
confidentiality or non-disparagement clauses in NHS settlement
agreements. Such clauses will remain valid, but the agreement
will not be approved unless there is explicit confirmation that it
does not prevent whistleblowing.

The impact of this announcement is unlikely to be as dramatic
as it may at first appear, for two reasons.

Current legislation already automatically invalidates any
clause in any agreement (whether a settlement agreement or
otherwise) to the extent that it seeks to prevent an individual
from making a whistleblowing disclosure – this would cover any
concerns that an employee or ex-employee may wish to raise about
patient safety, and may cover concerns about patient care.

Since January 2012, most NHS compromise agreements have
included a clause which confirms that the agreement does not
prevent whistleblowing disclosures, as a matter of course,
following a request from Sir David Nicholson.

Whilst it seems that today’s announcement does little to add to
existing protection for whistleblowers raising concerns about
patient safety, it remains to be seen how far this might impact on
the ability of individuals to raise concerns about patient care –
as concerns about general care (rather than safety) may fall short
of the legal test for a disclosure to be classed as a statutory
whistleblowing complaint. It does, however, seem likely that
concerns about patient care would have to be in the public interest
- and, therefore, relatively serious - in order to benefit from any
exclusion from a general confidentiality / non-disparagement
clauses in a settlement agreement.

In terms of practical steps as result of today’s announcement,
it seems that settlement agreements will still be able to go ahead,
largely unchanged; but it will be necessary to ensure that the
correct wording is included in the agreement to confirm the
employee’s / ex-employee’s ability to raise concerns of patient
safety and / or patient care. We will have to wait and see
exactly what wording is required; in the meantime, if you are
unsure or require further advice on this matter, please do contact
me or another member of our employment team – we have a wealth of
experience in advising on healthcare settlement agreements and have
particular insight into issues around the Mid Staffordshire
Inquiry, having acted for one of the core participants in the
Inquiry.

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The information on this website is of general interest about current legal issues and is not intended to apply to specific circumstances. It should not, therefore, be regarded as constituting legal advice.